Prescott v Police [2021] NZCA 496 (29 September 2021)

Last Updated: 6 October 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA360/2020 [2021] NZCA 496

	BETWEEN	PETER RICHARD PRESCOTT Applicant
	AND	NEW ZEALAND POLICE Respondent

Court:	Miller and Collins JJ
Counsel:	Applicant in person M J Hodge and A-R C Davies for Respondent
Judgment: (On the papers)	29 September 2021 at 9.30 am

JUDGMENT OF THE COURT

1. The application to recall this Court’s leave judgment is declined.
2. The respondent is entitled to costs for a standard application on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

• [1] On 13 July 2021, this Court declined Mr Prescott’s application for leave to bring a second appeal.^[1] That judgment was sealed on 27 July 2021. Two days later Mr Prescott applied to have this Court recall its leave judgment.

Background

• [2] We explained the background in our leave judgment. In summary:

(a) Mr Prescott was arrested and charged on 18 May 2011 with obstructing a constable in the execution of his duty when he refused to allow the constable to examine from inside Mr Prescott’s car, the warrant of fitness (the WOF) affixed to the windscreen of his car.

(b) It transpired the WOF was valid. The obstruction charge was withdrawn on 4 October 2011. Mr Prescott commenced a civil proceeding against the police in the District Court, alleging he had been arbitrarily arrested and denied his right to consult a lawyer.

(c) On 10 August 2016, the District Court dismissed Mr Prescott’s civil proceeding.^[2] He then brought an appeal and application for judicial review in the High Court, both of which were dismissed by Gault J on 18 December 2019.^[3]

(d) Mr Prescott’s application for leave to appeal to this Court from the judgment of the High Court was dismissed by the High Court on 11 June 2020, on the basis that the question of law raised by the proposed appeal was not sufficiently arguable and important to outweigh the costs and delay of a further appeal.^[4]

(e) Mr Prescott’s appeal from the High Court’s judicial review decision was deemed abandoned pursuant to r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules).

(f) In declining Mr Prescott’s application for leave to bring a second appeal, this Court agreed with the High Court that the public and private interests engaged by the proposed appeal did not outweigh the cost and delay of a further appeal.^[5] In reaching that decision this Court noted Mr Prescott’s counsel had focused in his submissions on factual issues rather than the proposed question of law.^[6]

Grounds for a recall application

• [3] The recall application relies on r 8A of the Rules, which states:

8A Recalling or reopening judgment

(1) The Court may, on an interlocutory application or on its own initiative, recall or reopen a judgment given in writing or orally, at any time before a formal record of it is drawn up and sealed.

(2) Neither the parties nor their representatives have a right to appear before the Court on an application for a judgment to be recalled or reopened, unless the Court otherwise directs.

• [4] The grounds for recalling or reopening a judgment are well established. In Horowhenua County v Nash (No 2), it was explained:^[7]

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

• [5] The application for recall has been advanced by Mr Prescott on two grounds:

(a) The acknowledgement by the Crown and the High Court when declining leave to appeal that the proposed appeal raised a question of law that was capable of bona fide argument.

(b) If Mr Prescott’s counsel erred when submitting that leave should be granted to enable a second appeal to be pursued, then Mr Prescott should not be punished because of his counsel’s error. Consistent with this argument, Mr Prescott also applies to us for a direction that Mr Prescott’s counsel resubmit to us amended submissions “clearly detailing the error of law his client is appealing against”.

Analysis

• [6] As this Court’s leave judgment has been sealed, the recall application does not fit within the requirements of r 8(1) of the Rules.
• [7] In any event, none of the very strict criteria that justify this Court recalling one of its judgments is satisfied in this case.
• [8] In particular, there is no special reason that means justice requires this Court recall its leave judgment.
• [9] In declining Mr Prescott’s application for leave to appeal, this Court recognised the question of law that Mr Prescott wished to pursue, notwithstanding the focus of his counsel’s submissions.^[8] Nevertheless, this Court concluded that the proposed appeal did not raise questions that “outweigh[ed] the cost and delay of a further appeal”.^[9] That was the fundamental basis upon which leave to appeal was declined.

Result

• [10] The application to recall this Court’s leave judgment is declined.
• [11] The respondent is entitled to costs for a standard application on a band A basis with usual disbursements.

Solicitors:
Meredith Connell, Auckland for Respondent

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^[1] Prescott v New Zealand Police [2021] NZCA 315 (Court of Appeal leave judgment).

^[2] Prescott v New Zealand Police [2016] NZDC 14357.

^[3] Prescott v New Zealand Police [2019] NZHC 3376.

^[4] Prescott v New Zealand Police [2020] NZHC 1304 (High Court leave judgment).

^[5] Court of Appeal leave judgment, above n 1.

^[6] At [16].

^[7] Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, applied in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76; Rainbow Corp Ltd v Ryde Holdings Ltd (1992) 5 PRNZ 493 (CA); Unison Networks Ltd v Commerce Commission [2007] NZCA 49; and Erwood v Glasgow Harley [2007] NZCA 88, (2007) 18 PRNZ 336.

^[8] Court of Appeal leave judgment, above n 1, at [10] and [13].

^[9] At [17].